Other side agrees landmark case should go to top court but seeks to maintain October 21 date for issuing licenses

Mercer County Superior Court Judge Mary C. Jacobson.

As promised, the Christie administration moved quickly Tuesday to try to stop same-sex marriages from happening in New Jersey later this month, asking a Superior Court judge to put her decision on hold until an appeal is decided, ultimately by the state Supreme Court.

Judge Mary Jacobson of Mercer County last Friday ordered New Jersey to begin issuing marriage licenses to gay couples on October 21.

A plaintiff in the case agreed that the case should go directly to the state Supreme Court, because of its importance, but said the state did not give a good enough reason to delay the order in the meantime.

Filed on behalf of Acting Attorney General John Hoffman, the state’s brief cites Jacobson’s own words that the case involving Garden State Equality and seven same-sex couples raised “difficult issues of federalism” and that she had “no clear precedential guide” in issuing her ruling.

“When novel constitutional issues with highly significant policy considerations, far-reaching implications, and countervailing principles are involved, a lower tribunal should make every effort to facilitate meaningful appellate review,” the brief says, going on to note that the state has already filed a notice of appeal with the Appellate Division and a letter asking the Supreme Court to take the appeal directly, a highly unusual action.

Lawrence Lustberg, who last August urged Jacobson to decide in GSE’s favor that the state’s civil union law does not provide couples with the same rights as those who are married, agreed that the Supreme Court should bypass the Appellate Division and take the case directly because it is such an important issue, but he said the state’s brief does not support delaying Jacobson’s ruling.

“It’s a pretty extraordinary brief,” said Lustberg. “Basically, it says that because there is important issue, there should be a stay.” Rather than proving the state would be harmed irreparably without a stay, Lustberg said, “I have clients who will suffer tremendously if they not permitted to marry. State has not indicated one way it would suffer.”

Lustberg had urged Jacobson to give New Jersey’s same-sex couples the right to marry immediately because the U.S. Supreme Court’s June ruling on the federal Defense of Marriage Act has meant couples in civil unions in the state cannot receive the same federal benefits – for instance, joint income tax filing -- now accorded to gay and lesbian couples in 13 states where they are allowed to marry.

Jacobson agreed, ruling last Friday that the state's civil-union law violates the equal-protection clause of the New Jersey constitution. She ordered the issuance of marriage licenses to same -ex couples to begin.

In its brief seeking to stay that ruling, the state contends that “the issue of whether to retain the millennia-old definition of marriage is of such social import” that an appeals panel should be able to consider the matter first.

It also contends that the decision was based on unsettled questions of constitutional law and, as such, “prudence mandates that a lower tribunal stay its Order and await Supreme Court analysis instead of overturning the established system on the basis of its opinion alone.” That is especially true because Jacobson’s order requires the state to take “drastic and, some would argue, irrevocable action” that may be made moot, depending on how the Supreme Court eventually rules.

While it is impossible to predict with certainty what the state Supreme Court will do, it did rule in 2006 in the Lewis v. Harris case that struck down New Jersey’s former domestic partnership law that the Legislature had to come up with a process, be it marriage or something else, that would guarantee same-sex couples the same rights and treatment as heterosexual married couples.

Jacobson established an ambitious schedule for considering the stay, with GSE required to file its response to the motion by Friday and the state having until next Monday to answer that response.
Lustberg agreed that speed is important, saying, “We don’t want to run into the issue where we are still litigating this on October 21.”